Join the Conversation

It's not delivery, it's litter?

Jack Greiner
Published 6:00 a.m. ET May 18, 2018

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group. (Photo: Provided, Provided)

Jack Greiner is a lawyer with the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

So what exactly is a publication that gets tossed on your lawn? A valuable source of information on local events? Fake news? Or maybe just litter?

On the one hand, those are kind of philosophical questions, and the answers depend, I guess, on the perception of the person answering the question. But in a recent case in upstate New York, the question had real implications.

A group of Queensbury, New York residents apparently got tired of a free weekly newspaper called “This Week” being delivered on their lawns. The residents, who apparently subscribed to the “don’t get mad, get even” school of life, convinced the local prosecutor to bring littering charges against the paper’s publisher, Robert Forcey.

On the one hand, the case isn’t crazy. If someone consistently dropped copies of the St. Louis Cardinals yearbook on my porch, I would, at a minimum examine my options – legal and extra- legal - for making it stop.

Indeed, if the publisher were depositing almost any unwanted substance on the residents’ lawns, a littering charge might be in order. But the key term there is “almost.”

In the first place, delivery of a newspaper may not be “litter” by definition. An Illinois court has ruled for example, that litter, when used as a verb, means “to discard.” And in its view, tossing a newspaper on a lawn is not the same as tossing a hamburger wrapper there. The paper deliverer isn’t “discarding” the paper, because it intends for the resident to read it.

But beyond the definitional issue, there’s a constitutional dimension. The First Amendment protects not only freedom of speech, but also freedom of the press. According to the New York court, this constitutional protection includes the right to disseminate the news. The court put it this way:

"Although it can be reasonably argued that there is a substantial governmental interest in keeping communities and streetscapes 'litter free,' this statute was neither intended, nor can it be properly construed to prohibit the distribution of 'This Week' as alleged by these complainants."

It's the content of “This Week” that makes the difference. In the court’s view, because “This Week” includes “newsworthy articles” and advertising, it cannot be considered “litter.” And a criminal sanction imposed on a publisher for disseminating that news would indeed violate the First Amendment.

It’s a fine line, I suppose. And it’s one that may not have quite as much impact as it once did, given the proliferation of online news. Some may consider digital content “trash” but that is purely metaphorical. It’s hard to imagine a littering ordinance applying to electronically transmitted material. So this entire discussion is on its way to becoming moot.

But the principle matters. If a town could easily stop the dissemination of news under the guise of prohibiting “litter,” it could go a long way to preventing its residents from being fully informed. And a pristine lawn is not worth that price.